March 05, 2010

Witness Statements: Work Product or Not?

California's attorney word product doctrine is codified in Code of Civil Procedure § 2018.030, and has both absolute and qualified components. There is absolute protection against discovery for a "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories," meaning that such writings are not discoverable under any circumstances. Other work product (which is not defined) "is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice."

For the court's assistance in applying this law, the legislature (which hasn't bothered to define "work product") offers the following philosophical statement in Code of Civil Procedure § 2018.020:

It is the policy of the state to do both of the following: (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts.

Well ok, it's a "policy" statement not a philosophical statement. Still, it might have been nice for the legislature to say what it was they were talking about. Instead, they supplied the following rather zen guidance in Code of Civil Procedure 2018.040:

This chapter is intended to be a restatement of existing law relating to protection of work product. It is not intended to expand or reduce the extent to which work product is discoverable under existing law in any action.

Fine. And as a result, for as long as I've been a lawyer, trial courts, appellate courts and lawyers have been struggling with, and coming up with different answers to, what seems like a straightforward questions that out to have a bright line answers: Are witness statements work product? Are they discoverable?

So, until yesterday, we had a line of cases that said this: Work product protection extends only to "derivative" material, which is material "created by or derived from an attorney‘s work on behalf of a client that reflects the attorney‘s evaluation or interpretation of the law or the facts involved." (2 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 8:235, p. 8C-69.) Thus, verbatim statements, tape recordings, etc. were "evidentiary," not "derivative," and hence not protected by the work product doctrine. The leading case espousing this view was, and is, Kadelbach v. Amaral (1973) 31 Cal.App.3d 814.

On the other hand, in 1996, we had the case of Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, which held that because the attorney's impressions and theories invariably affected who he or she chose to interview or statementize and what was asked, statements taken by an attorney or at his or her direction were always going to be privileged. Going even further, the Nacht & Lewis court held that Judicial Counsel Form Interrogatory No. 12.3 ("Have you . . . obtained a . . . statement. . . ? If so, for each statement state: (a) the name . . . of the individual from whom the statement was obtained . . . .") violated the work product doctrine.

Now recall that under Auto Equity Sales v. Superior Court (1962) 57 Cal.2nd 450, when appellate courts are in dispute over a point like this, every trial and appellate court in the state can go either way. And so for fourteen years, this dispute has created an opening for trial and appellate courts to pick sides and for litigants to treat the issue like a brand new one every time it comes up.

First, the absolute work product privilege is not applicable to a recorded witness statement merely because it was recorded by an attorney or his agent. Rather, the absolute privilege applies, if at all, to the attorney‘s "impressions, conclusions, opinions, or legal research or theories" (Code Civ. Proc., § 2018.030, subd. (a)2), and matters inextricably intertwined therewith.

Second, where an attorney (or the attorney‘s agent), in the course of preparing or investigating a client‘s case, interviews a percipient witness therein and records what that witness said, the recording constitutes qualified work product of the attorney. While such a recording is protected by the qualified privilege, it is still potentially discoverable depending on a moving party‘s showing of need under section 2018.030, subdivision (b).

Third, where a party objects to form interrogatory No. 12.3 based on the qualified work product privilege, the objection should be overruled where, as here, the objecting party failed to make a foundational showing that a response would actually disclose matters protected by the work product privilege (e.g., significant tactical information about the case).

Dissenting and concurring opinion, slip op. p. 1.

Our Supremes almost never grant hearings on discovery matters. They should do so in this one and resolve the issue, as Justice Kane suggested: "To date, our Supreme Court has not weighed in on this subject. It should do so. Clarifying the scope of the work product privilege in this context is important for legal practitioners and in propria persona litigants." Id., slip op. p. 2.